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CASE NO.: Appeal (crl.)  415 of 2006

PETITIONER: Sunil Balkrishna Bhoir

RESPONDENT: The State of Maharashtra

DATE OF JUDGMENT: 15/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

WITH CRIMINAL APPEAL NO. 417 OF 2006 AND  CRIMINAL APPEAL NO. 416 OF 2006

S.B. Sinha, J.

1.      These appeals arising out of the judgment and order dated 1.2.2005  passed by a division Bench of the Bombay High Court were taken up for  hearing together and are being disposed of by this common judgment.   Altogether 7 persons were charged for commission of murder of one  Ramdas on 3.2.1987 at 9 p.m. at his house.   The accused were charged  under Sections 147, 148, 302/149, 452 of the Indian Penal Code.  Accused  No. 3 was also charged for causing simple hurt to P.W. 1 Kishor.   The  learned Trial Judge convicted the accused persons.   The High Court has  affirmed the said judgment.   It is stated that during the course of the trial  and/or pendency of the appeal, accused Nos. 1 to 3 have expired.  Accused  No. 6 has not preferred any special leave petition before us.

2.      The motive for commission of the offence is said to be that the  deceased and accused no. 1 had quarreled with each other about a fortnight  prior to the date of incident.   

3.      Prosecution case is said to be as under :                  On 3.2.1987, the deceased Ramdas and his friend Kishor, P.W. 1, the  first informant were standing in front of the deceased’s house.   All the  accused persons allegedly came there at about 7.30 in the evening.  Accused  No. 1 asked for a gold pendent from the deceased Ramdas which was the  subject matter of the dispute between the parties and in relation whereto  quarrel had taken place as the earlier occasion.  The deceased, in response  thereto is said to have stated, that he had returned the said gold pendent to  some persons hailing from Panchpakhadi area.  At that the accused No. 2  allegedly caught hold of the shirt of the deceased, a scuffle ensued between  the accused No. 2 and the deceased.   P.W. 1 with the wife of the accused  No. 1 intervened and separated them.  Allegedly, the deceased touched the  person of the wife of accused no. 1, for which complaints were made by  both the parties before the Outpost of the Police at Kopri.  However, no  report was accepted and the police officers said to have pacified allegedly  pacified both the parties and sent them back.   On 3.2.1987 at about 7.30  p.m., P.W. 1 came to the house of the deceased.  They went to a pan stall  and took a round in the Bazar.  At about 9.00 p.m. both of them came back  to the house of the deceased.  Ramdas expressed his desire to have his dinner

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and requested P.W. 1 at his place to wait whereafter he promised to go to the  complainant’s house.  While P.W. 1 was sitting on the cot in the front room  of the deceased’s house and the deceased Ramdas had been taking his  dinner, he saw 6 to 7 persons coming to the front of the house.  When he  went out to see as to who they were, found the accused persons standing  there.  Allegedly, accused No. 2 was having a knife in his hands, and the  accused Nos. 3 to 6 were having swords in their hands.   P.W. 1 was asked to  call the deceased to which he replied that he was taking his dinner, and they  could talk to him after he finished taking meal.  He was then allegedly  assaulted by accused no. 3 by a sword by its blunt side on the shoulder,  whereafter the accused entered into the house of the deceased.   Baburao,  father of the deceased who examined himself as P.W. 5 tried to resist them  and in the process, caught hold of the sword which was in the hands of the  accused no. 6 resulting in sustaining of bleeding injuries.  The accused  allegedly entered into the room.  The deceased was assaulted with kicks and  fist blows.   Accused No. 2, Anil Mhatre stabbed the deceased Ramdas with  a knife.  While the accused persons were going out of the house, Bhaskar,  brother of the deceased came whereupon accused No. 2 asked him not to  enter into the house.  While P.W. 1 was going to report the matter to the  police Outpost Kopri, he met the other brother of the deceased, Sudhakar.   Sudhakar was asked by P.W. 1 to bring the deceased to the police outpost,  and he went to the police outpost.  The deceased was brought to the said  outpost by Sudhakar, whereafter he was referred to the Civil Hospital.  A  doctor upon examining him declared him dead.  Complainant Kishor and  witness Baburao were also examined by the doctor.  They were rendered  medical assistance.   

4.      The short question which arises for consideration in these appeals is  the nature of involvement of the appellants before us.  It is contended that  the appellants were unarmed, and they were not known to the deceased or  his family by even P.W. 1 Kishor.  They had no motive to commit the crime.   5.      The post mortem report shows that the following injuries were found  on the body of Ramdas: "1.     Stab wound on epigastric region right to midline 1" x  1/2" x deep to peritoneal cavity direct cavity direct into  backward and upward.

2.      Incised wound over left index finger at metocarpus  fallengial joint 1/2" x 1/4" x 1/8"  

3.      Incised wound on left thumb metocarpus fallengial  joint 1/2" x 1/4" x 1/8""

        6.      Only injury no. 1 was found by the doctor to be sufficient in the  natural course to cause death.

7.      The injuries on the person of Kishor was only a clean wound on left  infra clavicular region middle third of the clavic 1/4 cm x 1/4 cm x 1/4 cm.   whereas Baburao suffered the following injuries:- "Clean incised wound on the right hand at the distal  former kreez 1/2 cm. 1/2 cm x 1/4 cm. and on first  web space 1/2 cm. x 1/2 cm x 1/2 cm.  Injury on first  web space is also a clean incised wound and it is  injury no. 2.

Clean incised wound on left thumb terminal fale x 1/2  cm.  x 1/2 cm. x 1/2 cm."

8.      Indisputably, a vital injury was caused to the deceased by the accused  No. 2, while other injuries found on his person were caused only by blows.    The accused No. 3 is said to have caused injury to P.W. 1, but no specific  overt act was attributed to any of the appellants before us.  No witness stated  before the trial court in regard to the specific roles played by each of the

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appellants.   

9.      The learned counsel for the appellants questioned the identification of  the appellants by the prosecution witnesses before us.  Admittedly, test  identification parades were held for identification of the accused persons.    The first test identification parade was held only in respect of accused Nos. 1  to 4, whereas the second test identification parade was held in respect of  accused Nos. 5 to 7.   It is, therefore, evident that even the identity of the  appellants before us was in doubt.

10.     Even the full name of the appellant Sunil was not disclosed in the  First Information Report.  He in the test identification parade was not  identified by witnesses Ratna Kajale, Sudhakar Kajale, Bhaskar Kajale and  even the first informant Kishor and was identified only by the father of the  deceased Baburao Kajale.  Even Baburao did not attribute any specific overt  act so far as the said Sunil is concerned.  He did not say that Sunil was  having any weapon. 11.     P.W. Nos. 2 to 4 did not identify the accused No. 4 and accused No. 7  being the appellants in Criminal Appeal Nos. 415 of 2006 and 416 of 2006  respectively.

12.     Indisputably, all the witnesses are interested witnesses.  P.W. 1 was  the complainant.  P.W. 2 Ratna was allegedly at the relevant time have been  named to the deceased.   P.W.4 is Bhaskar, brother of the deceased.   P.W. 5,  Baburao was the father of the deceased.  P.W. 3 Sunil was also one of the  brothers of the deceased.     

13.     The learned Trial Judge did not place any reliance whatsoever on the  evidence of P.W. 5 Baburao and P.W. 3 Sunil.   We have noticed  hereinbefore that only one stab injury was inflicted on the deceased by  accused No. 2.   It was not repeated.

14.     Mr. V.A. Mohta, learned senior counsel appearing on behalf of the  appellant would submit that in the aforementioned fact situation, no case has  been made out to arrive at a finding that the appellants herein had a common  object to cause the death of the deceased Ramdas.     

15.     The learned Trial Judge as also the High Court proceeded on the basis  that for establishing common object, no prior meeting of mind was  necessary.  According to the courts below, it may develop on the spot.  The  dispute between the parties which was said to be the motive for committing  the offences was an ornament.   First of the quarrels between the accused  No. 1 and the deceased took place a fortnight prior to the date of occurrence.   Appellants herein were not involved.  Accused No. 1 on the one hand and  the deceased on the other quarreled on the second occasion.  A scuffle took  place.  The wife of the accused No. 1 and P.W. 1 tried to intervene.  The  deceased allegedly at that time touched the person of the wife of accused  No. 1.   They went to lodge their respective complaints but then the matter  was settled.  Accused No. 1 therefore may have a grudge as against the  deceased, who had touched his wife.   It is unlikely that the appellants before  us, who were wholly unarmed and who were even not known to the  deceased would form a common object to cause his death.   Had it been so,  they would have gone armed with weapons.  Specific overt acts had not been  attributed against them.  Allegations made in the first information report  show that whereas the accused Nos. 3 and 6 were armed with sword,  accused No. 2 had a knife.   The knife was used by accused No. 2 all of a  sudden.  Evidently nobody wanted to cause any serious injury to others.  The  medical evidence does not specifically mention as to how the wounds were  caused.  The size of the wound shows that nobody had used any weapon  with much force.   The wounds might have also been caused during scuffle.

16.     In the aforementioned situation, it is difficult to apply the test of  common object.  Mr. Sushil Karanjkar, learned counsel appearing on behalf  of the respondent, however, would inter alia rely upon a decision of this  court in Bishna alias Bhiswadeb Mahato and Others v. State of W.B. [(2005)

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12 SCC 657].

       In that case itself, it was held  "62.  For the purpose of attracting Section 149 IPC, it is not  necessary that there should be a pre-concert by way of a  meeting of the persons of the unlawful assembly as to the  common object.   If a common object is adopted by all the  persons and shared by them, it would serve the purpose."

17.     Section 149 per se constitutes a substantive offence.  The object of  this section is to make clear that an accused person whose case falls within  its terms cannot put forward the defence that he did not, with his own hand,  commit the offence committed in prosecution of the common object of the  unlawful assembly or such as the members of the assembly knew to be likely  to be committed in prosecution of that object. Unlawful assembly was  formed originally to assault and something might have happened all of a  sudden.   

18.     Common object is defined under Section 141 of the Indian Penal  Code in the following terms:- "141.  Unlawful assembly. \026 An assembly of five or  more persons is designated an ’unlawful assembly’, if the  common object of he persons composing that assembly  is-   First \026 To overawe by criminal force, or show of criminal  force, the Central or any State Government or Parliament  or the Legislature of any State, or any public servant in  the exercise of the lawful power of such public servant;  or

Second -  To resist the execution of any law, or of any  legal process; or

Third \026 To commit any mischief or criminal trespass, or  other offence; or

Fourth \026 By means of criminal force, or show of criminal  force, to any person, to take or obtain possession of any  property, or to deprive any person of the enjoyment of a  right of way, or of the use of water or other incorporeal  right of which he is in possession or enjoyment, or to  enforce any right or supposed right; or

Fifth. \026 By means of criminal force, or show of criminal  force, to compel any person to do what he is not legally  bound to do, or to omit to do what he is legally entitled to  do."

19.     Section 142 provides that whoever being aware of facts which render  any assembly an unlawful assembly, intentionally joins that assembly, or  continues in it, is said to be a member of an unlawful assembly.          20.     The question which is required to be seen in each case is, what was  the initial common object, if at all.   

21.     In Ram Dular Rai and Others v. State of Bihar [AIR 2004 SC 1043],  this Court held: "7...Section 149 does not require that all the five  persons must be identified.  What is required to be  established is the presence of five persons with a  common intention of doing an act.  If that is  established merely because the other persons  present are not identified that does not in any way

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affect applicability of Section 149, IPC."

22.     In Munna Chanda v State of Assam [(2006) 3 SCC 752], this Court in  the fact situation obtaining therein held:- "12.    It is, thus, essential to prove that the person  sought to be charged with an offence with the aid of  Section 149 was a member of the unlawful assembly at  the time the offence was committed.

13.     The appellants herein were not armed with  weapons.  They except Bhuttu were not parties to all the  three stages of the dispute.  At the third stage of the  quarrel, they wanted to teach the deceased and others a  lesson.  For picking up quarrel, they wanted to teach the  deceased and others a lesson.  For picking up quarrel  with Bhuttu, they might have become agitated and asked  for apologies from Moti.  Admittedly, it was so done at  the instance of Nirmal, Moti was assaulted by Bhuttu at  the instance of Ratan.  However, it cannot be said that  they had common object of intentional killing of the  deceased.  Moti, however, while being assaulted could  free himself from the grip of the appellants and fled from  the scene.  The deceased was being chased not only by  the appellants herein but by many others.   He was found  dead the next morning.  There is, however, nothing to  show as to what role the appellants either conjointly or  separately played.  It is also not known as to whether if  one or all of the appellants were present, when the last  blow was given.   Who are those who had assaulted the  deceased is also not known.   At whose hands he received  injuries is again a mystery.  Neither Section 34 nor  Section 149 of the Penal Code is, therefore, attracted (See  Dharam Pal v State of Haryana and Shambhu Kuer v  State of Bihar)."

23.     Yet again in Mummidi Hemadri and Ors. v State of Andhra Pradesh  [2007 (4) SCALE 431], a division bench of this Court opined as under:- "14.   Section 149 IPC, consists of two parts.  The first  part of the section means that the offence to be  committed in prosecution of the common object must  be one which is committed with a view to accomplish  the common object.  In order that the offence may fall  within the first part, the offence must be connected  immediately with the common object of the unlawful  assembly of which the accused was a member.  Even if  the offence committed is not in direct prosecution of the  common object of the assembly, it may yet fall under  Section 141 IPC, if it can be held that the offence was  such as the members knew was likely to be committed  and this is what is required in the second part of the  section.  The purpose for which the members of the  assembly set out or desired to achieve is the object.   If  the object desired by all the members is the same, the  knowledge that is the object which is being pursued is  shared by all the members and they are in general  agreement as to how it is to be achieved and that is now  the common object of the assembly.  An object is  entertained in the human mind, and it being merely a  mental attitude, no direct evidence can be available and,  like intention, has generally to be gathered from the act  which the person commits and the result therefrom....."

       [See also Radha Mohan Singh alias Lal Saheb and Others v. State of  U.P., (2006) 1 SCC (Cri) 661 and Rabindra Mahto and Another v. State of

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Jharkhand (2006) 10 SCC 432]     

24.     Applying the tests laid down by this Court in the aforementioned  decisions, we are of the opinion that no case had been made out as against  the appellants to arrive at a conclusion that they are guilty of commission of  an offence under Section 302/149.  We would assume that they were guilty  under Section 452 of the Indian Penal Code but they have remained in  custody for sufficiently long time.   We, therefore, are of the opinion that  having regard to the facts and circumstances of this case, these appeals  should be accepted.   Appellants herein are in custody.  They are directed to  be set at liberty in connection with certain other offences.  The appeals are  allowed and the impugned judgment is set aside.